Regulations Report: An Update

Article
From: Products Finishing, Christian Richter
from
The Policy Group

Posted on:11/1/2001

The Government Relations Program continues its work for the finishing industry. Here is an update on current activities...

The Surface Finishing Government Relations (GR) program has been extremely active in the past year addressing potential metals hazards, regulatory challenges to industry processes and competing approaches to environmental protection. Throughout this period, the industry's leadership, working through the GR program, has continued to enhance the surface finishing industry's credibility and reputation with policy decision makers in Washington, D.C. and beyond. Just a few of the many important developments for GR in 2000-2001 are highlighted below.

In the pre-proposal stage of the rulemaking, GR recognized that the EPA would likely promote needlessly stringent new discharge limits for finishers, and, hence, pressed for early discussions with EPA officials. Subsequent negotiations resulted in EPA's decision to take input during the comment period on a voluntary Pollution Prevention/Best Management Practices "template" for surface finishing job shops. The template could turn out to be a viable "non-regulatory" option in lieu of impossible new limits in the rule.

Since then, GR has committed an extraordinary level of time and effort to oppose the measure on the basis of its fundamental technical flaws and lack of scientific justification. The industry's key trade associations-NAMF, AESF and MFSA-have undertaken broad engineering, economic, legal and policy analysis to identify the rule's shortfalls. In order to overcome major challenges in responding appropriately and thoroughly to the proposed rule, finishers requested, and achieved, a critical extension to the MP&M comment period deadline.

On July 2, 2001, GR submitted the industry's comments on the proposed MP&M. These comments identified the significant flaws and errors in EPA's technical, economic and legal justification for the proposed rule. Following the submittal of comments, GR has been working closely with both staff and senior management officials at EPA, as well as other groups (e.g., POTWs and regulated industry groups), to demonstrate to EPA that this rule is not needed, is based on faulty data and analysis, fails to achieve any measurable environmental benefit, and imposes undue economic burden on the surface finishing industry and the nation's POTWs. Specifically, GR has held formal discussions in September and scheduled additional meetings with EPA staff to address some of the technical flaws of the MP&M rule. A detailed summary of some of these issues is provided in the "MP&M Analysis" accompanying this article.

Beyond what the industry provided to EPA in the public comments, the Agency may need additional information to make any final decisions on this rule. EPA is expected to issue a Notice of Data Availability (NODA) in January 2002 to identify any new data that it has received and to acknowledge any preliminary decisions on the efficacy of this rule based on public comments. EPA must take final action on the proposed rule by December 2002. This final action does not have to be new limits, but can be a decision by the Agency not to impose any additional regulations on the metal finishing industry. Such a result will require the continued diligence of GR and the industry to persuade EPA that this rule is not needed and cannot be justified.

Should EPA decide to issue final MP&M limits, the industry will have the opportunity to challenge this action in court. The foundation for any such legal challenge was provided in the industry's comments.

TRI Nitrates Enforcement: "Turnaround" Victory

Many recall the GR program's remarkable success story this past year on behalf of finishers. A broad U.S.EPA "surprise" enforcement action sought substantial penalties for Form R "right to know" reporting mistakes at more than 600 job shop, captive and other companies. Many firms had diligently sought to file appropriate information on nitric acid use and potential discharge, but made inadvertent errors in calculations.

Enforcement penalty letters had already arrived at the front desk of metal finishing facilities, yet GR quickly orchestrated an all-encompassing campaign to show top EPA officials and Capitol Hill allies that faulty information flow to industry from EPA, and not negligent company behavior, was to blame for reporting mistakes.

Ultimately, GR led negotiations toward a settlement with U.S.EPA enforcement chief Steve Herman that substantially minimized costs to industry, partly by allowing companies to perform full TRI audits at their plants. Companies that identified and disclosed by October 2000 all inadvertent reporting errors for a four-year period were exempt from further enforcement action in this area. The cost savings of GR nitrates efforts have been estimated in the tens of millions of dollars for industry generally, with a significant portion of that accruing directly to metal finishers.

As a testament to the success of the nitrates settlement, EPA several months ago widely publicized its TRI audit approach for nitrates as an important and innovative accomplishment for the Agency in 2000.

Remaining TRI Metals Issues: On the Front Burner

GR has continued to raise concerns regarding EPA's lowering of the annual reporting threshold for lead down to 100 lb. The industry's effective participation and leadership in the Ad Hoc National Metals Coalition has informed efforts to bring better science to bear on the controversial topic of using so-called "Persistent, Bioaccumulative and Toxic" criteria to minimize or eliminate the use of a range of key metals. Beyond lead and PBT, other TRI issues remain unresolved, despite industry's protest on the merits. Key examples of these are EPA's claim that finishers are "manufacturing" metal compounds in potentially large quantities in the plating bath due to a contorted accounting of transient chemical intermediaries.

Industry Enforcement: Moving Finishers Off the "List"

EPA had targeted the finishing industry for priority enforcement emphasis in 2000-2001. The Agency has determined recently that its next round of "priority" problem industries would not include surface finishing. GR has engaged in providing credible defense of typical industry practices and the trend toward superior performance and compliance throughout the plating universe. This trend is partly attributable to the implementation of the National Metal Finishing Strategic Goals Program, which is ongoing.

Other instances in which GR education activity has proved useful have been in suggesting corrections to enforcement office errors in describing the environmental impact of the industry. Due to GR's intense education efforts with senior enforcement officials, EPA retracted its statement that the plating industry contributes a majority of metals found in POTW wastewater treatment sludge. Finally, the industry's education and policy activities have been of great benefit in creating further compliance assistance and training opportunities for plating shops.

Nickel Compounds: Coordination and Progress

The GR program in 2000 effectively drove the integration and coordination of policy and advocacy efforts for the entire nickel supply chain in North America. While nickel producers, suppliers and platers had similar interests in working toward mutually beneficial goals in the past, lack of communication, advocacy and coordination of scientific research diminished the industry's effectiveness on all fronts. During 2000-2001, GR has brought together diverse nickel interests to maximize productive outcomes for the nickel-using community at large. Among other challenges, scientific discussion is now underway at EPA, the U.S. Dept. of Health and Human Services and in California on the status of soluble nickel compounds as potentially carcinogenic. The industry's coordination, scientific research and effective education efforts with allied industries are building what hopefully will be a resolution of the issue in a manner favorable to the industry and appropriate for the environment.

RCRA & F006-Persistence on Regulatory Reform

GR has continued to engage the EPA's Office of Policy and Office of Solid Waste in developing a rulemaking that would provide regulatory relief for ion exchange canisters under RCRA as well as broader regulatory reform for F006 waste. EPA staff is in the process of developing the ion exchange rule and is working with GR in collecting data on the use and management of ion exchange canisters. In addition, GR is working with EPA on ways to remove other regulatory barriers associated with the management of F006 waste that will move beyond the relatively modest changes made to the RCRA 90-day storage rule a few years ago.

Strategic Goals Program Implementation: Gaining Ground & Credibility

The "goals" program's existence over the past two years is a direct result of GR pressure to ensure adequate EPA policy commitment and funding for educational and outreach tools for the industry, as well as a host of other benefits under development at the local and regional level. The program has bolstered the performance of participating companies in a measurable way, leading to one of the key success stories at EPA on the environmental innovation front in the last decade.More than 400 companies, dozens of POTWs and states, as well as EPA regions, are participating in the Goals program. Finishers who are active argue that without SGP, they could never have envisioned addressing some of the issues they are now tackling at the facility level. They also assert that the industry has an entirely different-largely productive-relationship with the nation's POTWs than it did only several years ago.

Ergonomics

While many companies and industry trade associations were involved in the successful congressional push to overturn the ergonomics rule, GR strategy and efforts brought industry to Washington last year to keep the pressure on Capitol Hill at a critical juncture. Since Congress stopped the rule and sent it back to the Department of Labor earlier this year, work has ensued on crafting a more suitable and cost-effective alternative. The finishing industry is committed to providing a safe and productive workplace for its employees, and has sent the message to Congress that any effort to revisit the ergonomics rule should be done in a manner that is cost effective and does not undermine the states' workers compensation programs.

Industry Security Issues Following the Tragic Events of September 11Since the week of September 11, the surface finishing industry has been extensively involved in substantive and strategic discussions with the FBI, congressional staff and key industry associations on facility security issues and the potential for unlawful diversion of chemicals in domestic commerce. Moreover, the GR Program has initiated an outreach effort with a range of industries to accomplish two key objectives: 1) Ensure maximum safety in the supply chain of chemicals in the nation's manufacturing base; and 2) Avoid overreaction by representatives of the media and regulatory agencies regarding the legitimate use of chemicals in surface finishing processes.

The FBI, in concert with other federal, state and local law enforcement agencies, has undertaken a concerted effort on numerous fronts to detect and minimize potential dangers to companies, employees and the public as a result of chemical diversion, theft and misuse of dangerous materials. The FBI has not formally contacted leadership of the surface finishing industry. However, at the direction of the finishing industry's Government Advisory Committee, the industry's Government Relations Program alerted the FBI's Counter-Terrorism Division shortly after the attacks regarding the critical security concerns of surface finishers nationwide. The FBI's Washington, DC headquarters and certain field officials have expressed an interest in working with the industry to ensure that appropriate steps are taken to deter activity that endangers the public.

In the current climate of high anxiety among many Americans and businesses in response to the events of September 11 and the possibility of further attacks, the FBI has suggested in discussions with Government Relations that the creation of hysteria and fear is counterproductive to sensible planning. Accordingly, the industry's Government Activities Committee (GAC) through the GR Program is working on several strategic activities to advance security in the finishing industry and the manufacturing community at large, including engaging and educating the Department of Commerce and the new Office of Homeland Security created by President Bush on the surface finishing industry's concerns.

In the meantime, sensible finishing companies and suppliers are taking steps to raise their own awareness on their facility's security, protect chemicals and products stored at their facilities, maximize knowledge of customers in transactions involving potentially dangerous materials and report any suspicious or unusual transactions to appropriate law enforcement officials.

MP&M Analysis: Raising Critical Technical Issues with EPA

Since industry submitted MP&M comments, Government Relations has endeavored to spotlight for EPA water officials at all levels some of the more significant issues raised in the industry's extensive comment package. Provided below is a brief, and at some points rather technical, summary of one particular area of focus-EPA's vast overstatement of pollutant removals associated with the proposed regulations. The "pollutant removal" issue is merely one of more than a half-dozen priority issues that GR is pressing EPA to address to industry's satisfaction.

The issue summary below highlights only a handful of problems with the proposed regulation that must be corrected by the Agency.

Site

Future Finishes

CA Electroplating

Ace Plating

Miller Electroplating

Survey #

78771

84672

84631

80557

Treatment

2-stage cyanide Chem precipitation Clarifier/sand filter

CyanideChem precipitationClarifierChrome reduction

CyanideChem precipitationClarifierChrome reduction

CyanideChem precipitationClarifier

TreatmentCredit

none

none

none

none

WeightedPE Removed

843,789

80,207

24,921

112,056

Total PE Removal Claimed by EPA

1,060,973

Unit Operation Number

UP4

UP4R

UP5

UP5R

Description

Acid Baths

Acid Baths

Alkaline Bath

Alkaline Rinse

No. Samples

1

1

1

1

Sulfide

< 1 mg/liter (ND)

< 32 mg/liter (ND)

< 16 mg/liter (ND)

12 mg/liter

"Treatment Credit" for Job Shops

EPA has incorrectly classified several metal finishing job shops as having no treatment in place. Out of the few facility surveys reviewed by GR, four facilities had a substantial impact on how EPA credited pollutant removals attributable to MP&M. Below is a summary of these facilities and the total amount of pollutants we believe EPA erroneously overstated (measured in pound equivalents, or PE).

A review of these surveys confirms that each facility had treatment capable of removing these pollutants and that all of these facilities had the EPA requirements for Treatment In Place (TIP) credit fully documented. Documentation of the treatment in place as detailed in each of the facility's surveys was submitted to EPA as part of the industry's comment package. Effluent monitoring data provided by industry in the surveys also demonstrated good treatment. However, none of the sites was granted any treatment credit by EPA. Treatment credit at just these four facilities would have reduced PE removed by 1.06 million pounds PE (60.4% of all PE removed for metal finishing job shops).

Sulfides

The test that EPA used to measure sulfides is extremely susceptible to interferences from other chemical compounds. In addition, EPA's technical support for the presence of sulfides in metal finishing operations is very questionable. Only four total samples were analyzed, and three of these results were actually non-detects (at an elevated detection limit).

As noted above, an alkaline bath had <16mg/liter (ND) while the rinse sample immediately following that bath at the same site had 12 mg/liter. Even a very efficient rinse system does not typically give a dilution factor of 1.33 (16/12). The acid bath sulfide (<1 mg/liter) and acid rinse sulfide (<32 mg/liter) are also questionable based on the dilution factor.

For all MP&M Industry Subcategories covered by the proposed rule, EPA is claiming removal of over 2.5 million PE (220,000 PE from metal finishing job shops only) based on these four samples, only one of which was a detect (and even it is highly questionable). Because sulfides are unstable in acid solution and are rapidly evolved as hydrogen sulfide gas, it is unlikely that sulfide is present in acid baths or subsequent rinses. Based on the data, it does not appear that sulfide was present in any of these samples.

Pollutant

Cyanide

Copper

Silver

Tin

Total PE Removed

PE Removed

1,099,000

87,7000

2,700

11,900

1,201,300

Cyanide

The total 1.89 million PE of cyanide removal claimed by EPA is almost entirely based on a single cyanide rinse sample point.

Three samples (all taken at one sample point at the Kwikset facility in Anaheim, California) had an average of 45,000 mg/liter of cyanide. These samples were, however, taken from a cyanide drip tank that EPA mistakenly classified as a rinse tank. Kwikset verified that the facility has a bath with about 40,000 to 50,000 mg/liter of cyanide followed by a drip tank and a two stage countercurrent rinse. The drip tank contains dragout bath solution, which is recycled back to the plating bath. Kwikset also verifies that this process was in place at the time of the EPA sample collection and that the equipment is unchanged.

As a result, when this erroneously high concentration of cyanide is averaged with the other EPA samples from cyanide rinses, the Agency estimated that the typical cyanide rinse operation contain an unrealistic concentration of over 5000 mg/liter of cyanide. Even EPA should have recognized this mistake, because the average influent to cyanide treatment reported by EPA in the Technical Development Document for the MP&M rulemaking was only 45 mg/liter. EPA failed to make a simple crosscheck of its own technical background documents or with knowledgeable industry representatives.This single sample point from Kwikset (when classified as a rinse sample) also led to EPA overstating additional pollutant removals for the metal finishing job shop subcategory. The table below summarizes the pollutant removals for which EPA mistakenly claimed credit based on sampling a plating bath that it classified as a rinse.

Additional mistakes further overstated the amount of pollutant credit that EPA claimed for cyanide in the MP&M rule. According to technical background documents, EPA stated that for every 2 gal of cyanide rinse wastewater, industry produces almost 1 gal of concentrated cyanide bath waste. Actual industrial practice results in bath flows that are far less than 1% of rinse flow, as cyanide baths often run for years without being hauled or discharged.

Facility "Unit Operations" Assignments by EPA

One particular Unit Operation associated with the Job Shop subcategory, an acid rinse, was found to have 253 mg/liter of tin based on 38 samples, while the acid bath has only 7.4 mg/liter based on 25 samples. It is improbable that a typical rinse would have more tin than a bath.

The discrepancy in tin here is due to a single sample point that EPA erroneously classified as a rinse. In the Sampling Episode Report, one sample labeled "Electroless Copper Plating Catalyst Solution" and identified as a "Process tank bath" was classified as a rinse. The tank immediately following this bath is also classified as a rinse. The tank is clearly a bath, not a rinse and should be reclassified as such. Misclassifying this bath as a rinse is responsible for EPA's claim of 194,100 PE removed from metal finishing job shops.

Copper in Key Unit Operations

The average copper in 10 samples of Acid Baths from the Printed Wiring Board industry is 13,200 mg/liter. The average copper in 15 samples from all other subcategories is only 607 mg/liter. Using only the concentrations of copper from those sources outside of the Printed Wiring Board industry reduces EPA's claim of pollutants, or PE removed, by 62,800 for metal finishing job shops.

EPA's Imputed Flows

Much of the data EPA relied upon in developing the proposed MP&M rule was taken from the earlier surveys filled out by individual facilities. If a survey did not include specific information on water flows or if EPA added unit operations that the industry did not identify in the survey, EPA estimated or imputed the flow based on "best engineering judgment." Many of these imputed flows grossly exceeded total flow or total water usage reported elsewhere in the survey. The table below includes examples of imputed annual flows and the comparison to total flows or water usage actually reported in the surveys.

In its survey, the Diebold facility did not report floor wash as a unit operation. Using "best engineering judgment" EPA included this unit operation for the facility and without explanation imputed a flow of 283 million gal per year. The Diebold facility was built without any floor drains, and therefore, has minimal floor wash. The only substantial wastewater (except noncontact cooling water) at the Diebold facility is from an iron phosphate bath. The only contaminants in the rinse are acid, which is treated by pH neutralization, and iron and phosphate. Average flow for all wastewater is 4.5 million gal per year as reported on the survey.

EPA's erroneous imputed flow for the Diebold facility resulted in an overestimate of 541,000 PE. The total overestimate of PE for the three facilities referenced above resulting from inappropriate imputed flow was 1.163 million PE. Perhaps EPA needs better "best engineering judgment" when imputing flows.

Site

DieboldGEM EquipmentSmith and Wesson

Survey

101441434716589

Imputed Total Flow

283,000,0004,0001,280,000

Actual Total Flow

4,500,00058,900210,000,000

Weighted PE Removed

541,000257,000365,000

Total Pollutant Removal Overestimates

In its Technical Development Documents for the MP&M rulemaking, EPA estimated that the proposed MP&M rule would remove 1,766,063 PE from the metal finishing job shop subcategory. Based on the technical analysis conducted on behalf of the metal finishing industry and detailed in the comments submitted to EPA, EPA's estimate for pollutant removals is grossly exaggerated. The table below summarizes the degree to which EPA overstated the PE removals.

Sources of Overstated PE Removal

Treatment Credit for 4 Sites

Sulfide

Cyanide

Unit Operations Assignments

Copper in Two Unit Operations

Other (from dedicated comments)

Total Overstated PE

1,060,973*

222,000

1,201,300

194,100

62,800

46,568

1,726,768

To avoid double counting, the overstated PE removal from the treatment credit are not included in total because a substantial amount (but not all) of the overstated treatment credit PE removal involves pollutants that are also accounted for by the other errors described above. If all of these errors in calculating pollutant removals are corrected for the metal finishing job shop subcategory, the total industry estimate of pollutant removal is only 39,295 PE. With such a low pollutant removal figure, EPA would have a difficult time justifying the proposed MP&M rule for metal finishing job shops.

The effort to convince EPA that its pollutant removal analysis is in error will be a difficult and resource intensive task. To this end, GR will be meeting with EPA staff and senior management officials to work through each of these issues and to identify a reasonable alternative to the proposed MP&M limits, such as voluntary pollution prevention and best management practices. GR negotiations with Office of Water will complement the efforts of the POTWs (local water discharge regulatory agencies) to convince EPA that this rule is not needed and would pose an unnecessary financial and administrative burden on the POTWs with little, if any, environmental benefits.

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